Citation Nr: 1214432
Decision Date: 04/20/12 Archive Date: 04/27/12
DOCKET NO. 09-18 371 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUES
1. Entitlement to service connection for diabetes mellitus, to include as due to radiation exposure.
2. Entitlement to service connection for vision problems, to include as due to radiation exposure.
3. Entitlement to service connection for residuals of a stroke, to include as due to radiation exposure.
4. Entitlement to service connection for bilateral foot rash (tinea cruris), to include as due to radiation exposure.
5. Entitlement for tumors, to include as due to radiation exposure.
6. Entitlement to service connection for loss of sense of smell, to include as due to radiation exposure.
7. Entitlement to service connection for multiple joint and bone pain, to include as due to radiation exposure.
8. Entitlement to service connection for hypertension, to include as due to radiation exposure.
9. Entitlement to service connection for cardiomyopathy, to include as due to radiation exposure.
10. Entitlement to service connection for chronic headaches, to include as due to radiation exposure.
11. Entitlement to service connection for right hand numbness, to include as due to radiation exposure.
12. Entitlement to service connection for a right leg condition, to include as due to radiation exposure.
REPRESENTATION
Veteran represented by: Timothy M. White, Attorney at Law
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
S. Finn, Counsel
INTRODUCTION
The Veteran served on active duty from May 1960 to October 1963.
These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.
In October 2008, the Veteran testified during a personal hearing at the RO and, in March 2011, the Veteran, sitting at the RO, testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge. Transcripts of these hearings are associated with the claims file.
A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.
The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required.
REMAND
The Veteran asserts that his conditions were the result of exposure to weapons grade plutonium (uranium isotope U-235) while working as a nuclear technician in the Navy. (See January 2008 VA Form 21-526).
The Veteran testified that he worked on nuclear weapons on a daily basis and was exposed to alpha radiation in Guam. (See March 2011 Hearing Transcript, p. 3). He stated that his DD Form 1141 (Record of Exposure to Ionizing Radiation) tested for beta and gamma radiation, but not alpha and neutron exposure. The Veteran did not recall whether he wore badges and a dosimeter. (Id. at 6).
In support of his exposure, the Veteran submitted a book titled: "Brotherhood of Doom: Memoirs of a Navy Nuclear Weaponsman." It was about a nuclear weapons specialist who was exposed to gamma, x-ray, neutrons, and alpha and beta radiation. (Id. at 31). In the memoir, the specialist recalled performing "hands on operations" with nuclear components of the Mark 7 warhead. The Veteran asserts a similar experience.
The Veteran's personnel records reflect that he went to Nuclear Weaponsman Class "A" School in U.S. Navadunit, Sandia Base, New Mexico. His DD 1141 reflects film badge measurements of "0.00" for gamma and beta radiation for 4 separate time periods between January 1962 to September 1963.
With regard diabetes mellitus (DM), the Veteran was diagnosed with DM in approximately 1991. The Veteran had recurrent headaches for approximately 10 years. A January 2004 private treatment record noted that the Veteran had increased phobia and deteriorating vision for the past two months. His vision was 20/50 OD and 20/100 OS. The Veteran was diagnosed with significant diabetic maculopathy/retinopathy and cataracts.
In an October 2008 written statement, Dr. A. H. stated that the Veteran's hypertension, heart disability, and diabetes mellitus were at least as likely as not related to his exposure to radiation from handling nuclear weapons on a daily basis for three years. In support of his opinion, Dr. A. H. cited to Wong and Colleagues (1993); Annals of the New York Academy of Science (2006), National Academy of Science report Seventh Biological Effects of Ionizing Radiation (2005); and VA Administration Committee on Environmental Hazards Radiation Risk Activities Report (1993).
In a January 2009 written statement, Dr. S. M. stated that the Veteran's bilateral retinopathy was assumed to be related to his diabetic condition, but may be "more persistent than usual due to his past radiation exposure."
A February 2011 written statement from Dr. R. W. stated, in part, it was as likely as not that his illnesses were caused by exposure to ionizing radiation.
As reflected above, the Veteran had a military occupational specialty which required radiation monitoring. The Veteran has submitted evidence that his dose estimate does not take into account potential alpha and neutron exposure, and also submitted evidence that his diseases are radiogenic in nature.
By regulation, the Under Secretary for Health is responsible for preparing dose estimates for claims involving occupational and "other" exposure to ionizing radiation. 38 C.F.R. § 3.311(a)(2)(iii). The Board finds that the Under Secretary for Health must review the pertinent documents and provide a dose estimate for the Veteran's ionizing radiation exposure in his capacities working with nuclear weapons.
In particular, the RO must forward the Veteran's service medical and personnel records (including his DD Form 1141), a copy of the Veteran's March 2011 hearing transcript and the book submitted by the Veteran entitled Brotherhood of Doom, Memoirs of a Navy Nuclear Weaponsman to the Under Secretary for Health for preparation of a dose estimate of his total exposure to ionizing radiation which takes into account the Veteran's work duties and all sources of ionizing radiation. See 38 C.F.R. § 3.311(a)(2)(iii). The Board emphasizes that, based upon the regulatory language of 38 C.F.R. § 3.311(a)(2)(iii), the DD Form 1141 findings of no gamma or beta ray exposure does not preclude this evidentiary development.
Upon resolution of the dose estimate, the RO should determine whether the claim requires any further review by the Under Secretary for Benefits pursuant to 38 C.F.R. § 3.311(c).
Accordingly, the case is REMANDED for the following action:
1. The RO must forward the Veteran's service medical and personnel records (including his DD Form 1141), a copy of the Veteran's March 2011 hearing transcript and the book submitted by the Veteran entitled Brotherhood of Doom, Memoirs of a Navy Nuclear Weaponsman to the Under Secretary for Health (or authorized entity by the Under Secretary for Health) for preparation of a dose estimate of his total exposure to ionizing radiation which takes into account the Veteran's work duties and all sources of ionizing radiation (including alpha, beta, gamma and neutron).
2. Upon resolution of the dose estimate, the RO should determine whether the claim requires any further review by the Under Secretary for Benefits pursuant to 38 C.F.R. § 3.311(c).
3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the claims. If the benefits sought remain denied, the Veteran and his agent should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for a response.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).